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Domestic reality does not match bold words on Internet freedom of expression

The US government has reiterated its commitment to online free speech several times since President Barack Obama took office in January 2009. Secretary of State Hillary Clinton, in particular, affirmed US support for freedom of expression and opinion very clearly in a speech in Washington on January 21st, 2010.

Urging American companies to take a “principled stand” against online censorship, Clinton said defense of the Internet should be one of the cornerstones of US diplomacy. As the “birthplace” of so many online technologies, the United States had a “responsibility” to protect the Internet as a tool for economic and social development and promoting democracy, as well as a place for the free exchange of ideas. “We stand for a single Internet where all of humanity has equal access to knowledge and ideas,” Clinton added.

Since then, the United States has developed many tools that support online free expression such as “Shadow Internet” and parallel mobile phone systems that cyber-dissidents can use in countries to escape the censorship of authoritarian regimes. The US plans to invest 70 million dollars for this kind of project in 2011.

Nonetheless, although the US government has defended Iranian bloggers, Chinese activists and Arab Spring netizens, it has also been responsible for initiatives that have harmed online free speech and has displayed a hostile attitude to online activities. Reporters Without Borders has followed several cases that run counter to the US government’s professed commitment to fundamental Internet freedoms.

US free speech violations, targeting WikiLeaks

WikiLeaks and free flow of information

The leak of classified US diplomatic cables prompted many free speech violations in the United States at the federal government’s bidding. WikiLeaks announced on October 24th that it was suspending its activities for lack of funding, as a result of the refusal by Visa and MasterCard to process donations to WikiLeaks in what is a form of economic censorship.

The White House issued a directive on December 3rd, 2010 forbidding unauthorized federal employees from accessing classified documents available on WikiLeaks. The Library of Congress and State Department responded a few hours later by blocking access to WikiLeaks from their computers. As well as WikiLeaks the US Air Force blocked access to the websites of the five newspapers that had worked closely with WikiLeaks – The New York Times, The Guardian, Le Monde, Der Spiegel and El Pais – and around 20 other media and blogs that had been publishing the cables.

The free flow of information about WikiLeaks is also being threatened in blogs. Peter Van Buren, a US Foreign Service Officer for the past 23 years, was accused in September of divulging classified information for posting a link in his blog to a 2009 WikiLeaks cable about the sale of US military spare parts to Muammar Gaddafi’s armed forces.

He is being investigated by the State Department and was suspended on October 24th pending a final decision. His superiors were also annoyed by his decision to write a book about his experiences of the war in Iraq – “We Meant Well - How I Helped Lose the Battle for Hearts and Minds of the Iraqi People” without getting permission from the State Department.

Whistleblower Bradley Manning’s intolerable conditions of detention

US Army Private Bradley Manning, the alleged source of all the confidential US diplomatic cables that WikiLeaks began publishing in November 2010, has been held since June 2010. He is charged with treason and violating defense secrets and is facing the possibility of life imprisonment.

The material allegedly leaked by Manning included the video of a US air force helicopter attack in Baghdad in 2007 in which two employees of the Reuters news agency died. After being held for two months in a military prison in Kuwait, he was transferred to a Marine Corps base in Quantico, Virginia, where he spent eight months in solitary confinement as a “maximum custody detainee.” He has been held in Fort Leavenworth, Kansas, since April 2011.

The journalist David House and the lawyer and columnist Glenn Greenwald (Salon.com) described the conditions in which Manning was held in Quantico as “cruel and inhumane.” He was confined for 23 hours a day to a 142x70 inches cell. He was denied all contact with the outside world. He could not talk to fellow detainees and had no access to news media. He was subjected to an oppressive level of supervision, in which his light was kept on at night, he had to strip naked for a search every evening and visits had to be accompanied.

His lawyer posted an account of Manning’s typical day in his blog. House said he noted Manning’s physical and mental conditions deteriorate in the course of his visits.

A Human Rights Watch report in March 2010 said, “isolation can be as clinically distressing as physical torture.” The United Nations Special Rapporteur on torture, Juan Mendez, who is preparing a report on Manning’s conditions of detention, said this month it was unacceptable that he had been refused a confidential meeting with Manning.

Reporters Without Borders wrote to Manning in September proposing a meeting (visits can only take place at the prisoner’s initiative) and is still awaiting a reply.

A great deal of interest in Manning’s fate is being voiced online and a support committee has been created. A contribution to Manning’s defense fund can be made at its website. There is also an online petition. The Facebook page (which has more than 29,000 members) and the Twitter page also try to rally public support for Manning.

Hounding WikiLeaks supporters

Reporters Without Borders is also concerned about the protection of personal data. On March 11th, a Virginia federal judge ordered Twitter to provide the Justice Department with the personal data of Internet users suspected of working with WikiLeaks.

On January 4th, and April 15th, the Justice Department obtained secret court orders requiring Google and Sonic.net, an Internet Service provider, to hand over the IP addresses and email addresses of all of the contacts of WikiLeaks public advocate Jacob Appelbaum since November 2009.

This information was obtained under the Electronic Communications Privacy Act (ECPA), an outdated law dating back to 1986, - when information was stored on desktops, not online. The government is now using it to obtain emails, IP addresses, mobile phone location records and other digital documents on the basis of court orders that are often sealed, without having to obtain a search warrant and without having to produce evidence that a crime may have been committed.

The ECPA represents a major infringement of the confidentiality guarantees that every Internet user has the right to demand. As used against WikiLeaks and one of its representatives, it has taken on the character of a special procedure that violates the basic rights that anyone being investigated should enjoy.

Repressive legislation with a worldwide impact

ACTA leadership – US vision at the international level

The United States launched the proposal for an Anti-Counterfeiting Trade Agreement (ACTA) in June 2006 with the aim of getting a relatively small number of key countries to initially agree on a standard for the protection of intellectual property. The calculation was that other countries would then have to adopt the standard in order to continue to have trade relations with the accord’s original signatories.

Several aspects of ACTA show that the United States is less than fully committed to protecting the security and identity of Internet users. The right accorded to the relevant authorities to ask ISPs to identify their clients could lead to security abuses including loss of online anonymity and tracking of dissidents. The requirement to criminally prosecute suppression of metadata (data identifying a file’s content and origins) and circumvention of Digital Rights Management (DRM) has the effect of making censorship circumvention and anonymity illegal. This jeopardizes online free speech in many countries.

Despite repeated appeals from many free expression organizations, the United States and seven other countries – Australia, Canada, Japan, Morocco, New Zealand, Singapore and South Korea – signed the agreement at a ceremony in Tokyo on October 1st.

Protect IP Act – targeting websites worldwide

The proposed Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, otherwise known as the Protect IP Act, which Sen. Patrick Leahy introduced in the Senate in May, would allow intellectual property owners to seek draconian court orders against websites that allegedly infringe intellectual property rights, including websites hosted outside the United States (read the law).

They could for example force search engines to exclude these websites from their results. They could also force online payment processors, advertisers and Domain Name System managers from cooperating with them. It would be very drastic, as the court orders would have the effect of eliminating entire websites, not just the specific illegal content.

James Losey of the New America Foundation told Reporters Without Borders that, by making DNS filtering legal, the Protect IP Act could encourage other countries to take the same road. He also pointed out that the procedure is not very effective and that blocking a site’s domain does not block the site itself.

Stop Online Piracy Act

The Stop Online Piracy Act (H.R. 3261) that Rep. Lamar Smith presented to the House of Representatives on 26 October is similar to the Protect IP Act but would go further. It would allow copyright and intellectual property owners to demand the withdrawal or blocking of any online content that they deemed to be violating their rights, without having to go to a judge. If sites refused to comply, copyright holders could then turn to a judge to obtain enforcement.

Such “notice and take down” methods have often been criticized by Reporters Without Borders in the past. A House committee is due to start examining the bill on November 16th.

Reporters Without Borders calls on the United States to abandon this bill, which is clearly hostile to freedom of expression and reverses the usual judicial logic by delaying referral to a judge until after content is blocked. It would allow copyright and intellectual property owners to impose content filtering and blocking without independent judicial control. It would allow them to decide what content can and cannot be accessed. It would turn them into Internet dictators.

Targeted websites could find that banking services had blocked their online payments, in what would constitute a post hoc legalization of the WikiLeaks payment boycott. Copyright and intellectual property owners could also insist on the withdrawal of ads on social networks and search engines and, on demand, could prevent sites from appearing in search results.

The bill also provides for the prosecution of anyone developing a censorship circumvention tool, in the US and abroad. This would be a very dangerous precedent for netizens who live under repressive regimes and have no choice but to use proxies in order to express their opinions freely.

Public order v. free speech

Mobile phones cut to prevent demonstration

Officials with the San Francisco Bay Area Rapid Transit (BART) cut power to mobile phone relay towers at four stations for three hours on 11 August to thwart plans for a “flash mob” protest against the death of Charles Blair Hill, a 45-year-old passenger who had been fatally shot by two BART security guards six weeks earlier.

Right to caricature challenged

In response to a series of satirical short cartoon videos about the police in Renton, Washington, that were posted online by someone using the pseudonym of Mr. Fiddlesticks, the Renton police department and a local prosecutor got a judge to issue a search warrant in August accusing the anonymous cartoonist of “cyber-stalking.” If identified, the cartoonist could now go to jail. Reporters Without Borders points out freedom of speech and right to privacy are fundamental rights.

Occupy Wall Street – private sector helping to censor?

The ThinkProgress website reported that Yahoo! Mail has censored emails containing the words “Occupy Wall Street.” When users tried to send a message with this phrase, they got the following notification: “Suspicious activity has been detected on your account. To protect your account and our users, your message has not been sent.” Several social networks are also suspected of helping to censor information about the protests.

Yahoo! said messages may have been blocked by its spam filters but were not blocked deliberately. Reporters Without Borders is worried about the possibility that coverage of events within the United States is being hampered by cooperation between the government and private sector.

Net Neutrality – inadequate guarantees

New Federal Communications Commission rules that are supposed to protect Net Neutrality took effect on 20 November but problems remain. ISPs keep the right to increase the bandwidth available to companies that need it to send bandwidth-heavy content. The blocking of “unlawful” websites and peer-to-peer transmission is still possible. And for the most part, the new rules apply only to fixed broadband, and not mobile.

The non-profit organization Free Press has filed a legal challenge to the rules. Reporters Without Borders reiterates its opposition to any kind of filtering and blocking of content on principle and to any kind of discrimination against individuals and companies in access and use of the network. And it thinks Net Neutrality should also apply to mobile broadband connections, which are being used more and more thanks to the popularity of smartphones and tablet computers.

Information and IT – what’s at stake

National Strategy for Trusted Identities in Cyberspace

Last April, the Commerce Department launched what it calls a National Strategy for Trusted Identities in Cyberspace (NSTIC), under which every Internet user would have a single secure online ID or credential for all their online activities. But the use of a single ID and password would jeopardize the user’s data if the password were stolen or hacked, or if the entity managing the credential database released information to other entities. With the hacking of email accounts and Facebook pages growing all the time, such a national strategy would be dangerous.

Cyber-war – new US military option?

Information and information technology are at the centre of US defense strategy. The US government considered launching a cyber-attack on the Gaddafi regime’s computer and communications systems in an attempt to sabotage its radar and air-defense capability and thereby reduce the risks for NATO’s air-strikes on Libya.

One of the reasons why the cyber-offensive was not launched was a still unresolved debate within the Obama administration as to whether the president had the power to proceed without informing Congress. Nonetheless, the use of cyber-attacks is now regarded as a real option to be considered in future hostilities.